Hattermann v. US, 88-1323.
| Decision Date | 05 January 1989 |
| Docket Number | No. 88-1323.,88-1323. |
| Citation | 743 F. Supp. 578 |
| Parties | Terence HATTERMANN, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
Terence Hattermann, pro se.
Assistant U.S. Attorney's Office, Peoria, Ill., for U.S.
Terence Hattermann has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He was arrested on October 14, 1986, convicted on May 22, 1987, and sentenced to three years in federal prison on June 15, 1987. Between the time of his arrest and the time of sentencing, Hattermann was released on bond. He is currently serving his sentence at the federal prison in Terre Haute, Indiana. Mr. Hattermann was also released on bond pending his appeal and was taken into custody after the mandate was returned. He does not appear to raise any question regarding this period of time. (See his Argument attached to the Petition at p. 7). However, to the extent that this period is included in his motion, this order encompasses it.
In his motion, Hattermann asserts that under 18 U.S.C. § 3568 the Attorney General should give him credit toward service of his sentence for the time he spent on bond between his arrest and sentencing. He argues that the term "in custody" in § 3568 should be ascribed a meaning identical to that phrase under the habeas corpus statutes, §§ 2254 and 2255. By refusing to credit him with this time, Mr. Hattermann asserts that the Attorney General has extended his sentence by 244 days without due process, and, by applying it differently to those persons released on bond than to those suffering from other restraints on their liberty, the Attorney General has violated his equal protection rights.
Before considering the merits of Mr. Hattermann's arguments, however, his standing to raise those issues must be examined. Under § 3568 where the sentence imposed plus the time spent in presentence custody totals less than the maximum sentence provided for that offense, there is a presumption that the sentencing judge gave credit for any presentence custody. Holt v. United States, 422 F.2d 822 (7th Cir.1970). Accord, Parker v. Estelle, 498 F.2d 625 (5th Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1974); Trimmings v. Henderson, 498 F.2d 86 (5th Cir.1974), cert. denied, 420 U.S. 931, 95 S.Ct. 1135, 43 L.Ed.2d 405 (1974); Swift v. United States, 436 F.2d 390 (8th Cir.1970), cert. denied, 403 U.S. 920, 91 S.Ct. 2237, 29 L.Ed.2d 698 (1970). If Mr. Hattermann was sentenced for less than the maximum, he does not have standing to challenge this statute. Swift, 436 F.2d 390, 392-93.
Mr. Hattermann was convicted under 21 U.S.C. § 841(a)(1) and § 843(a)(3) and sentenced to three years in prison. The penalties for violations of § 841(a)(1) are prescribed in § 841(b). Although Mr. Hattermann's petition does not provide enough specifics to determine with certainty what provision of subpart (b) sets forth the parameters of his punishment, it is evident that his sentence is well below the maximum. The penalties for violations of § 843(a)(3) are prescribed in § 843(c). The maximum sentence is four years. Mr. Hattermann's sentence of three years is also below the four year maximum even if the number of days on bond is added to his three year sentence. Therefore, Mr. Hattermann does not have standing to challenge the unconstitutionality of the Attorney General's refusal to credit his sentence with the time he was on bond prior to sentencing.
Even if Plaintiff had standing to raise these issues, his arguments would fail. All the circuit courts to have addressed the issue of the proper interpretation of "in custody" have concluded that this phrase means "detention or imprisonment in a place of confinement and does not refer to the stipulations imposed when a defendant is at large on conditional release." United States v. Peterson, 507 F.2d 1191, 1192 (D.C.Cir.1974). Accord, United States v. Figueroa, 828 F.2d 70 (1st Cir.1987); Villaime v. U.S. Department of Justice, 804 F.2d 498, 499 (8th Cir.1986), cert. denied, 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 514 (1987); Ortega v. United States, 510 F.2d 412, 413 (10th Cir.1975); Polakoff v. United States, 489 F.2d 727, 730 (5th Cir.1974). Cf., United States v. Robles, 563 F.2d 1308, 1309 (9th Cir.1977), cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978) (); Sica v. United States, 454 F.2d 281 (9th Cir.1971) (same rule). See also, United States v. Golden, 795 F.2d 19, 21 (3rd Cir.1986) ().
Mr. Hattermann's reliance upon Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), and other cases interpreting the "in custody" requirement under habeas corpus proceedings is misplaced. The Supreme Court in Hensley held only that a person released on personal recognizance is in custody for purposes of habeas corpus proceedings. Id. at 349, 93 S.Ct. at 1573. This holding has never been extended to § 3568. E.g., Cerrella v. Hanberry, 650 F.2d 606, 607 (5th Cir.1981), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1981); Ortega v. United States, 510 F.2d at 413; Villaime v. United States Department of Justice, 804 F.2d at 499.
The difference in interpretation accorded the same phrase in different statutes is consistent with the relative statutory language and purpose of these statutes. The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Hensley, 411 U.S. at 351, 93 S.Ct. at 1574. The custody requirement of § 3568, however, was designed to authorize inclusion in the period of incarceration any time spent in a local institution while awaiting transportation to the penal institution and thus prevent judges from frustrating the will of Congress by adding periods of time to the actual sentence imposed resulting in more time served than the statutory maximum. In other words, it simply establishes a firm date for the commencement of a sentence. United States v. Liddy, 510 F.2d 669 (D.C. Cir.), cert. denied, 420 U.S. 980, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1974); Siegel v. United States, 436 F.2d 92 (2d Cir.1970); Sawyer v. United States, 376 F.2d 615 (8th Cir.1967). A secondary purpose of the statute was to give credit for time spent in custody while awaiting trial where the defendant was originally arrested and held in custody on a state charge and then eventually turned over to federal government for prosecution. Bell v. District of Columbia Department of Corrections, 403 A.2d 330 (D.C.App.1979).
Therefore, considering the language and the history of the statute, this Court joins those courts which have held that the "in custody" requirement of § 3568 applies only to actual physical incarceration and does not extend to persons in Mr. Hattermann's situation.
Mr. Hattermann also asserts that the language "any person" is consistent with a broad interpretation of § 3568. Although apparently "any person" is a term that has not been interpreted in the context of § 3568, when the phrase is read in context of the first two sentences, Mr. Hattermann's argument is without merit. In the first sentence, the phrase "any person" is qualified by "convicted of an offense;" the first sentence, therefore, does not deal with "any person" prior to conviction. The second sentence does not contain the phrase "any person"; it contains the phrase "any such person" and therefore also refers to any person convicted of an offense. Mr. Hattermann does not fall into this category for the period of time prior to his conviction....
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